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Saturday, July 5, 2014

On June 26, 2014, the U.S. Supreme Court released its
decision in National Labor Relations Board v. Noel Canning, a case that piqued
the interest of many constitutional scholars by questioning whether the
president can legally appoint government officials without Senate approval
during congressional recesses—even when the Senate is meeting in “pro forma”
sessions where a few senators gavel in for only a few minutes. The answer to the
question, according to all nine justices, is “no.” Although the decision’s
impact on executive appointments will be significant, it will also have
practical impacts on the National Labor Relations Board—and by extension the
labor and employment laws affecting U.S. employers—because the appointments in
question were for three NLRB members who issued decisions for 18
months.
U.S. Supreme CourtNATIONAL LABOR RELATIONS BOARD v. NOEL CANNING ET
AL.No. 12-1281June 26, 2014ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT

Syllabus(Bench Opinion)OCTOBER TERM, 20131

No.
12-1281. Argued January 13, 2014-Decided June 26, 2014

Respondent Noel Canning, a Pepsi-Cola distributor, asked the
D. C. Circuit to set aside an order of the National Labor Relations Board,
claiming that the Board lacked a quorum because three of the five Board members
had been invalidly appointed. The nominations of the three members in question
were pending in the Senate when it passed a December 17, 2011, resolution
providing for a series of "pro forma sessions," with "no business . . .
transacted," every Tuesday and Friday through January 20, 2012. S. J., 112th
Cong., 1st Sess., 923. Invoking the Recess Appointments Clause-which gives the
President the power "to fill up all Vacancies that may happen during the Recess
of the Senate," Art. II, §2, cl. 3-the President appointed the three members in
question between the January 3 and January 6 pro forma sessions. Noel Canning
argued primarily that the appointments were invalid because the 3-day
adjournment between those two sessions was not long enough to trigger the Recess
Appointments Clause. The D. C. Circuit agreed that the appointments fell outside
the scope of the Clause, but on different grounds. It held that the phrase "the
recess," as used in the Clause, does not include intra-session recesses, and
that the phrase "vacancies that may happen during the recess" applies only to
vacancies that first come into existence during a recess.

Held:

1.
The Recess Appointments Clause empowers the President to fill any existing
vacancy during any recess-intra-session or inter-session-of sufficient length.
Pp. 5-33.

(a) Two background considerations are relevant to the questions
here. First, the Recess Appointments Clause is a subsidiary method for
appointing officers of the United States. The Founders intended the norm to be
the method of appointment in Article II, §2, cl. 2, which requires Senate
approval of Presidential nominations, at least for principal officers. The
Recess Appointments Clause reflects the tension between the President's
continuous need for "the assistance of subordinates," Myers v. United States,
272 U.S. 52 , 117, and the Senate's early practice of meeting for a single brief
session each year. The Clause should be interpreted as granting the President
the power to make appointments during a recess but not offering the President
the authority routinely to avoid the need for Senate
confirmation.

Second, in interpreting the Clause, the Court puts
significant weight upon historical practice. The longstanding "practice of the
government," McCulloch v. Maryland, 4 Wheat. 316, 401, can inform this Court's
determination of "what the law is" in a separation-of-powers case, Marbury v.
Madison, 1 Cranch 137, 176. See also, e.g., Mistretta v. United States, 488 U.S.
361 , 401; The Pocket Veto Case, 279 U.S. 655 , 689-690. There is a great deal
of history to consider here, for Presidents have made recess appointments since
the beginning of the Republic. Their frequency suggests that the Senate and
President (*2) have recognized that such appointments can be both necessary and
appropriate in certain circumstances. The Court, in interpreting the Clause for
the first time, must hesitate to upset the compromises and working arrangements
that the elected branches of Government themselves have reached. Pp.
5-9.

(b) The phrase "the recess of the Senate" applies to both
inter-session recess (i.e., breaks between formal sessions of the Senate) and
intra-session recesses (i.e., breaks in the midst of a formal session) of
substantial length. The constitutional text is ambiguous. Founding-era
dictionaries and usages show that the phrase "the recess" can encompass
intra-session breaks. And this broader interpretation is demanded by the purpose
of the Clause, which is to allow the President to make appointments so as to
ensure the continued functioning of the Government while the Senate is away. The
Senate is equally away and unavailable to participate in the appointments
process during both an inter-session and an intra-session recess. History offers
further support for this interpretation. From the founding until the Great
Depression, every time the Senate took a substantial, non-holiday intra-session
recess, the President made recess appointments. President Andrew Johnson made
the first documented intra-session recess appointments in 1867 and 1868, and
Presidents made similar appointments in 1921 and 1929. Since 1929, and
particularly since the end of World War II, Congress has shortened its
inter-session breaks and taken longer and more frequent intra-session breaks;
Presidents accordingly have made more intra-session recess appointments.
Meanwhile, the Senate has never taken any formal action to deny the validity of
intra-session recess appointments. In 1905, the Senate Judiciary Committee
defined "the recess" as "the period of time when the Senate" is absent and
cannot "participate as a body in making appointments," S. Rep. No. 4389, 58th
Cong., 3d Sess., p. 2, and that functional definition encompasses both
intra-session and inter-session recesses. A 1940 law regulating the payment of
recess appointees has also been interpreted functionally by the Comptroller
General (an officer of the Legislative Branch). In sum, Presidents have made
intra-session recess appointments for a century and a half, and the Senate has
never taken formal action to oppose them. That practice is long enough to
entitle it to "great weight in a proper interpretation" of the constitutional
provision. The Pocket Veto Case, supra, at 689.

The Clause does not say
how long a recess must be in order to fall within the Clause, but even the
Solicitor General concedes that a 3-day recess would be too short. The
Adjournments Clause, Art. I, §5, cl. 4, reflects the fact that a 3-day break is
not a significant interruption of legislative business. A Senate recess that is
so short that it does not require the consent of the House under that Clause is
not long enough to trigger the President's recess-appointment power. Moreover,
the Court has not found a single example of a recess appointment (*3) made
during an intra-session recess that was shorter than 10 days. There are a few
examples of inter-session recess appointments made during recesses of less than
10 days, but these are anomalies. In light of historical practice, a recess of
more than 3 days but less than 10 days is presumptively too short to fall within
the Clause. The word "presumptively" leaves open the possibility that a very
unusual circumstance could demand the exercise of the recess-appointment power
during a shorter break. Pp. 9-21.

(c) The phrase "vacancies that may
happen during the recess of the Senate," Art. II, §2, cl. 3, applies both to
vacancies that first come into existence during a recess and to vacancies that
initially occur before a recess but continue to exist during the recess. Again,
the text is ambiguous. As Thomas Jefferson observed, the Clause is "certainly
susceptible of two constructions." Letter to Wilson Cary Nicholas (Jan. 26,
1802), in 36 Papers of Thomas Jefferson 433. It "may mean 'vacancies that may
happen to be' or 'may happen to fall' " during a recess. Ibid. And, as Attorney
General Wirt wrote in 1821, the broader reading is more consonant with the
"reason and spirit" of the Clause. 1 Op. Atty. Gen. 632. The purpose of the
Clause is to permit the President, who is always acting to execute the law, to
obtain the assistance of subordinate officers while the Senate, which acts only
in intervals, is unavailable to confirm them. If a vacancy arises too late in
the session for the President and Senate to have an opportunity to select a
replacement, the narrower reading could paralyze important functions of the
Federal Government, particularly at the time of the founding. The broader
interpretation ensures that offices needing to be filled can be filled. It does
raise a danger that the President may attempt to use the recess-appointment
power to circumvent the Senate's advice and consent role. But the narrower
interpretation risks undermining constitutionally conferred powers more
seriously and more often. It would prevent a President from making any recess
appointment to fill a vacancy that arose before a recess, no matter who the
official, how dire the need, how uncontroversial the appointment, and how late
in the session the office fell vacant.

Historical practice also strongly
favors the broader interpretation. The tradition of applying the Clause to
pre-recess vacancies dates at least to President Madison. Nearly every Attorney
General to consider the question has approved the practice, and every President
since James Buchanan has made recess appointments to pre-existing vacancies. It
is a fair inference from the historical data that a large proportion of recess
appointments over our Nation's history have filled pre-recess vacancies. The
Senate Judiciary Committee in 1863 did issue a report disagreeing with the
broader interpretation, and Congress passed a law known as the Pay Act
prohibiting payment of recess appointments to pre-recess vacancies soon after.
However, the Senate subsequently abandoned its hostility. In 1940, (*4) the
Senate amended the Pay Act to permit payment of recess appointees in
circumstances that would be unconstitutional under the narrower interpretation.
In short, Presidents have made recess appointments to preexisting vacancies for
two centuries, and the Senate as a body has not countered this practice for
nearly three-quarters of a century, perhaps longer. The Court is reluctant to
upset this traditional practice where doing so would seriously shrink the
authority that Presidents have believed existed and have exercised for so long.
Pp. 21-33.

2. For purposes of the Recess Appointments Clause, the Senate
is in session when it says that it is, provided that, under its own rules, it
retains the capacity to transact Senate business.

This standard is
consistent with the Constitution's broad delegation of authority to the Senate
to determine how and when to conduct its business, as recognized by this Court's
precedents. See Art. I, §5, cl. 2; Marshall Field & Co. v. Clark, 143 U. S.
649 , 672; United States v. Ballin, 144 U. S. 1 , 5, 9. Although the Senate's
own determination of when it is and is not in session should be given great
weight, the Court's deference cannot be absolute. When the Senate is without the
capacity to act, under its own rules, it is not in session even if it so
declares.

Under the standard set forth here, the Senate was in session
during the pro forma sessions at issue. It said it was in session, and Senate
rules make clear that the Senate retained the power to conduct business. The
Senate could have conducted business simply by passing a unanimous consent
agreement. In fact, it did so; it passed a bill by unanimous consent during its
pro forma session on December 23, 2011. See 2011 S. J. 924; Pub. L. 112-78 . The
Court will not, as the Solicitor General urges, engage in an in-depth factual
appraisal of what the Senate actually did during its pro forma sessions in order
to determine whether it was in recess or in session for purposes of the Recess
Appointments Clause.

Because the Senate was in session during its pro
forma sessions, the President made the recess appointments at issue during a
3-day recess. Three days is too short a time to bring a recess within the scope
of the Clause, so the President lacked the authority to make those appointments.
Pp. 33-41.

705 F. 3d 490 , affirmed.

BREYER, J., delivered the
opinion of the Court, in which KENNEDY, GINSBURG, SOTOMAYOR, and KAGAN, JJ.,
joined. SCALIA, J., filed an opinion concurring in the judgment, in which
ROBERTS, C. J., and THOMAS and ALITO, JJ., joined.

Opinion of the
CourtJUSTICE BREYER delivered the opinion of the Court.

54NLRB v.
CANNING

Ordinarily the President must obtain "the Advice and Consent of
the Senate" before appointing an "Officer of the United States." U.S. Const.,
Art. II, §2, cl. 2 . But the Recess Appointments Clause creates an exception. It
gives the President alone the power "to fill up all Vacancies that may happen
during the Recess of the Senate, by granting Commissions which shall expire at
the End of their next Session." Art. II, §2, cl. 3 . We here consider three
questions about the application of this Clause.

The first concerns the
scope of the words "recess of the Senate." Does that phrase refer only to an
inter-(*5) session recess (i.e., a break between formal sessions of Congress),
or does it also include an intra-session recess, such as a summer recess in the
midst of a session? We conclude that the Clause applies to both kinds of
recess.

The second question concerns the scope of the words "vacancies
that may happen." Does that phrase refer only to vacancies that first come into
existence during a recess, or does it also include vacancies that arise prior to
a recess but continue to exist during the recess? We conclude that the Clause
applies to both kinds of vacancy.

The third question concerns calculation
of the length of a "recess." The President made the appointments here at issue
on January 4, 2012. At that time the Senate was in recess pursuant to a December
17, 2011, resolution providing for a series of brief recesses punctuated by "pro
forma sessions," with "no business . . . transacted," every Tuesday and Friday
through January 20, 2012. S. J., 112th Cong., 1st Sess., 923 (2011) (hereinafter
2011 S. J.). In calculating the length of a recess are we to ignore the pro
forma sessions, thereby treating the series of brief recesses as a single,
month-long recess? We conclude that we cannot ignore these pro forma
sessions.

Our answer to the third question means that, when the
appointments before us took place, the Senate was in the midst of a 3-day
recess. Three days is too short a time to bring a recess within the scope of the
Clause. Thus we conclude that the President lacked the power to make the recess
appointments here at issue.

IThe case before us arises out of a labor
dispute. The National Labor Relations Board (NLRB) found that a Pepsi-Cola
distributor, Noel Canning, had unlawfully refused to reduce to writing and
execute a collective-bargaining agreement with a labor union. The Board ordered
the distributor to execute the agreement and to make employees whole for any
losses. Noel Canning, 358 N. L. R. B. No. 4 (2012).

The Pepsi-Cola
distributor subsequently asked the Court of Appeals for the District of Columbia
Circuit to set the Board's order aside. It claimed that three of the five Board
members had been invalidly appointed, leaving the Board without the three
lawfully appointed members necessary for it to act. See 29 U.S.C. §160(f)
(providing for judicial review); §153(a) (providing for a 5-member Board);
§153(b) (providing for a 3-member quorum); New Process Steel, L. P. v. NLRB, 560
U.S. 674 , 687-688 (2010) (in the absence of a lawfully appointed quorum, the
Board cannot exercise its powers).

The three members in question were
Sharon Block, Richard Griffin, and Terence Flynn. In 2011 the President had
nominated each of them to the Board. As of January 2012, Flynn's nomination had
been pending in the Senate awaiting confirmation for approximately a year. The
nominations of each of the other two had been pending for a few weeks. On
January 4, 2012, the President, invoking the Recess Appointments Clause,
appointed all three to the Board.

The distributor argued that the Recess
Appointments Clause did not authorize those appointments. It pointed out that on
December 17, 2011, the Senate, by unanimous consent, had adopted a resolution
providing that it would (*6) take a series of brief recesses beginning the
following day. See 2011 S. J. 923. Pursuant to that resolution, the Senate held
pro forma sessions every Tuesday and Friday until it returned for ordinary
business on January 23, 2012. Ibid.; 158 Cong. Rec. S1-S11 (Jan. 3-20, 2012).
The President's January 4 appointments were made between the January 3 and
January 6 pro forma sessions. In the distributor's view, each pro forma session
terminated the immediately preceding recess. Accordingly, the appointments were
made during a 3-day adjournment, which is not long enough to trigger the Recess
Appointments Clause.

The Court of Appeals agreed that the appointments
fell outside the scope of the Clause. But the court set forth different reasons.
It held that the Clause's words "the recess of the Senate" do not include
recesses that occur within a formal session of Congress, i.e., intra-session
recesses. Rather those words apply only to recesses between those formal
sessions, i.e., inter-session recesses. Since the second session of the 112th
Congress began on January 3, 2012, the day before the President's appointments,
those appointments occurred during an intra-session recess, and the appointments
consequently fell outside the scope of the Clause. 705 F. 3d 490 , 499-507 (CADC
2013).

The Court of Appeals added that, in any event, the phrase
"vacancies that may happen during the recess" applies only to vacancies that
come into existence during a recess. Id., at 507-512 . The vacancies that
Members Block, Griffin, and Flynn were appointed to fill had arisen before the
beginning of the recess during which they were appointed. For this reason too
the President's appointments were invalid. And, because the Board lacked a
quorum of validly appointed members when it issued its order, the order was
invalid. 29 U.S.C. §153(b) ; New Process Steel, supra .

We granted the
Solicitor General's petition for certio-rari. We asked the parties to address
not only the Court of Appeals' interpretation of the Clause but also the
distributor's initial argument, namely, "[w]hether the President's
recess-appointment power may be exercised when the Senate is convening every
three days in pro forma sessions." 570 U.S. ___ (2013).

We shall answer
all three questions presented. We recognize that the President has nominated
others to fill the positions once occupied by Members Block, Griffin, and Flynn,
and that the Senate has confirmed these successors. But, as the parties
recognize, the fact that the Board now unquestionably has a quorum does not moot
the controversy about the validity of the previously entered Board order. And
there are pending before us petitions from decisions in other cases involving
challenges to the appointment of Board Member Craig Becker. The President
appointed Member Becker during an intra-session recess that was not punctuated
by pro forma ses-sions, and the vacancy Becker filled had come into existence
prior to the recess. See Congressional Research Service, H. Hogue, M. Carey, M.
Greene, & M. Bearden, The Noel Canning Decision and Recess Appointments Made
from 1981-2013, p. 28 (Feb. 4, 2013) (hereinafter (*7) The Noel Canning
Decision); NLRB, Members of the NLRB since 1935, online at http://www.nlrb.gov/
who-we-are/board/members-nlrb-1935 (all Internet materials as visited June 24,
2014, and available in Clerk of Court's case file). Other cases involving
similar challenges are also pending in the Courts of Appeals. E.g., NLRB v. New
Vista Nursing & Rehabilitation, No. 11-3440 etc. (CA3). Thus, we believe it
is important to answer all three questions that this case
presents.

IIBefore turning to the specific questions presented, we
shall mention two background considerations that we find relevant to all three.
First, the Recess Appointments Clause sets forth a subsidiary, not a primary,
method for appointing officers of the United States. The immediately preceding
Clause-Article II, Section 2, Clause 2 -provides the primary method of
appointment. It says that the President "shall nominate, and by and with the
Advice and Consent of the Senate, shall appoint Ambassadors, other public
Ministers and Consuls, Judges of the supreme Court, and all other Officers of
the United States" (emphasis added).

The Federalist Papers make clear
that the Founders intended this method of appointment, requiring Senate
approval, to be the norm (at least for principal officers). Alexander Hamilton
wrote that the Constitution vests the power of nomination in the President alone
because "one man of discernment is better fitted to analise and estimate the
peculiar qualities adapted to particular offices, than a body of men of equal,
or perhaps even of superior dis-cernment." The Federalist No. 76, p. 510 (J.
Cooke ed. 1961). At the same time, the need to secure Senate approval provides
"an excellent check upon a spirit of favoritism in the President, and would tend
greatly to preventing the appointment of unfit characters from State prejudice,
from family connection, from personal attachment, or from a view to popularity."
Id., at 513. Hamilton further explained that the

"ordinary power of
appointment is confided to the President and Senate jointly, and can therefore
only be exercised during the session of the Senate; but as it would have been
improper to oblige this body to be continually in session for the appointment of
officers; and as vacancies might happen in their recess, which it might be
necessary for the public service to fill without delay, the succeeding clause is
evidently intended to authorise the President singly to make temporary
appointments." Id., No. 67, at 455.

Thus the Recess Appointments Clause
reflects the tension between, on the one hand, the President's continuous need
for "the assistance of subordinates," Myers v. United States, 272 U.S. 52 , 117
(1926), and, on the other, the Senate's practice, particularly during the
Republic's early years, of meeting for a single brief session each year, see
Art. I, §4, cl. 2 ; Amdt. 20, §2 (requiring the Senate to "assemble" only "once
in every year"); 3 J. Story, Commentaries on the Constitution of the United
States §1551, p. 410 (1833) (it would be "burthensome to the senate, and
expensive to the public" to require the Senate to be "perpetually in session").
We seek to interpret the Clause as granting the President the power to make
appointments during (*8) a recess but not offering the President the author-ity
routinely to avoid the need for Senate confirmation.

Second, in
interpreting the Clause, we put significant weight upon historical practice. For
one thing, the inter-pretive questions before us concern the allocation of power
between two elected branches of Government. Long ago Chief Justice Marshall
wrote that

"a doubtful question, one on which human reason may pause, and
the human judgment be suspended, in the decision of which the great principles
of liberty are not concerned, but the respective powers of those who are equally
the representatives of the people, are to be adjusted; if not put at rest by the
practice of the government, ought to receive a considerable impression from that
practice." McCulloch v. Maryland, 4 Wheat. 316 , 401 (1819).

And we later
confirmed that "long settled and established practice is a consideration of
great weight in a proper interpretation of constitutional provisions" regulating
the relationship between Congress and the President. The Pocket Veto Case, 279
U.S. 655 , 689 (1929); see also id., at 690 "A practice of at least twenty years
duration 'on the part of the executive department, acquiesced in by the
legislative department, . . . is entitled to great regard in determining the
true construction of a constitutional provision the phraseology of which is in
any respect of doubtful meaning' " (quoting State v. South Norwalk, 77 Conn. 257
, 264 , 58 A. 759, 761 (1904))).

We recognize, of course, that the
separation of powers can serve to safeguard individual liberty, Clinton v. City
of New York, 524 U.S. 417 , 449-450 (1998) (KENNEDY, J., concurring), and that
it is the "duty of the judicial department"-in a separation-of-powers case as in
any other-"to say what the law is," Marbury v. Madison, 1 Cranch 137 , 177
(1803). But it is equally true that the longstanding "practice of the
government," McCulloch, supra, at 401 , can inform our determination of "what
the law is," Marbury, supra, at 177 .

These precedents show that this
Court has treated practice as an important interpretive factor even when the
nature or longevity of that practice is subject to dispute, and even when that
practice began after the founding era. See Mistretta, supra, 400-401 ("While
these [practices] spawned spirited discussion and frequent criticism, . . .
'traditional ways of conducting government . . . give meaning' to the
Constitution" (quoting Youngstown, supra, at 610 ) (Frankfurter, J.,
concurring)); Regan, supra, at 684 ("Even if the pre-1952 (practice) should be
disregarded, (*9) congressional acquiescence in (a practice) since that time
supports the President's power to act here"); The Pocket Veto Case, supra, at
689-690 (postfounding practice is entitled to "great weight"); Grossman, supra,
at 118-119 (postfounding practice "strongly sustains" a "construction" of the
Constitution).

There is a great deal of history to consider here.
Presidents have made recess appointments since the beginning of the Republic.
Their frequency suggests that the Senate and President have recognized that
recess appointments can be both necessary and appropriate in certain
circumstances. We have not previously interpreted the Clause, and, when doing so
for the first time in more than 200 years, we must hesitate to upset the
compromises and working arrangements that the elected branches of Government
themselves have reached.

IIIThe first question concerns the scope of
the phrase "the recess of the Senate." Art. II, §2, cl. 3 (emphasis added). The
Constitution provides for congressional elections every two years. And the
2-year life of each elected Congress typically consists of two formal 1-year
sessions, each separated from the next by an "inter-session recess."
Congressional Research Service, H. Hogue, Recess Appointments: Frequently Asked
Questions 2 (2013). The Senate or the House of Representatives announces an
inter-session recess by approving a resolution stating that it will "adjourn
sine die," i.e., without specifying a date to return (in which case Congress
will reconvene when the next formal session is scheduled to begin).

The
Senate and the House also take breaks in the midst of a session. The Senate or
the House announces any such "intra-session recess" by adopting a resolution
stating that it will "adjourn" to a fixed date, a few days or weeks or even
months later. All agree that the phrase "the recess of the Senate" covers
inter-session recesses. The question is whether it includes intra-session
recesses as well.

In our view, the phrase "the recess" includes an
intra-session recess of substantial length. Its words taken literally can refer
to both types of recess. Founding-era dictionaries define the word "recess,"
much as we do today, simply as "a period of cessation from usual work." 13 The
Oxford English Dictionary 322-323 (2d ed. 1989) (hereinafter OED) (citing 18th-
and 19th-century sources for that definition of "recess"); 2 N. Webster, An
American Dictionary of the English Language (1828) ("[r]emission or suspension
of business or procedure"); 2 S. Johnson, A Dictionary of the English Language
1602-1603 (4th ed. 1773) (hereinafter Johnson) (same). The Founders themselves
used the word to refer to intra-session, as well as to inter-session, breaks.
See, e.g., 3 Records of the Federal Convention of 1787, p. 76 (M. Farrand rev.
1966) (hereinafter Farrand) (letter from George Washington to John Jay using
"the recess" to refer to an intra-session break of the Constitutional
Convention); id., at 191 (speech of Luther Martin with a similar usage); 1 T.
Jefferson, A Manual of Parliamentary Practice §LI, p. 165 (2d ed. 1812)
(describing a "recess by adjournment" which did not end a
session).(*10)

We recognize that the word "the" in "the recess" might
suggest that the phrase refers to the single break separating formal sessions of
Congress. That is because the word "the" frequently (but not always) indicates
"a particular thing." 2 Johnson 2003. But the word can also refer "to a term
used generically or universally." 17 OED 879. The Constitution, for example,
directs the Senate to choose a President pro tempore "in the Absence of the
Vice-President." Art. I, §3, cl. 5 (emphasis added). And the Federalist Papers
refer to the chief magistrate of an ancient Achaean league who "administered the
government in the recess of the Senate." The Federalist No. 18, at 113 (J.
Madison) (emphasis added). Reading "the" generically in this way, there is no
linguistic problem applying the Clause's phrase to both kinds of recess. And, in
fact, the phrase "the recess" was used to refer to intra-session recesses at the
time of the founding. See, e.g., 3 Farrand 76 (letter from Washington to Jay);
New Jersey Legislative-Council Journal, 5th Sess., 1st Sitting 70, 2d Sitting 9
(1781) (twice referring to a 4-month, intra-session break as "the Recess"); see
also Brief for Petitioner 14-16 (listing examples).

The constitutional
text is thus ambiguous. And we believe the Clause's purpose demands the broader
interpretation. The Clause gives the President authority to make appointments
during "the recess of the Senate" so that the President can ensure the continued
functioning of the Federal Government when the Senate is away. The Senate is
equally away during both an inter-session and an intra-session recess, and its
capacity to participate in the appointments process has nothing to do with the
words it uses to signal its departure.

History also offers strong support
for the broad interpretation. We concede that pre-Civil War history is not
helpful. But it shows only that Congress generally took long breaks between
sessions, while taking no significant intra-session breaks at all (five times it
took a break of a week or so at Christmas). See Appendix A, infra. Obviously, if
there are no significant intra-session recesses, there will be no intra-session
recess appointments. In 1867 and 1868, Congress for the first time took
substantial, nonholiday intra-session breaks, and President Andrew Johnson made
dozens of recess appointments. The Federal Court of Claims upheld one of those
specific appointments, writing "we have no doubt that a vacancy occurring while
the Senate was thus temporarily adjourned" during the "first session of the
Fortieth Congress" was "legally filled by appointment of the President alone."
Gould v. United States, 19 Ct. Cl. 593, 595-596 (1884) (emphasis added).
Attorney General Evarts also issued three opinions concerning the
constitutionality of President Johnson's appointments, and it apparently did not
occur to him that the distinction between intra-session and inter-session
recesses was significant. See 12 Op. Atty. Gen. 449 (1868); 12 Op. Atty. Gen.
455 (1868); 12 Op. Atty. Gen. 469 (1868). Similarly, though the 40th Congress
impeached President Johnson on charges relating to his appointment power, he was
not (*11) accused of violating the Constitution by making intra-session recess
appointments. Hartnett, Recess Appointments of Article III Judges: Three
Constitutional Questions, 26 Cardozo L. Rev. 377, 409 (2005).

In all,
between the founding and the Great Depression, Congress took substantial
intra-session breaks (other than holiday breaks) in four years: 1867, 1868,
1921, and 1929. Appendix A, infra. And in each of those years the President made
intra-session recess appointments. See App. to Brief for Petitioner
1a-11a.

Since 1929, and particularly since the end of World War II,
Congress has shortened its inter-session breaks as it has taken longer and more
frequent intra-session breaks; Presidents have correspondingly made more
intra-session recess appointments. Indeed, if we include military appointments,
Presidents have made thousands of intra-session recess appointments. Id., at
11a-64a. President Franklin Roosevelt, for example, commissioned Dwight
Eisenhower as a permanent Major General during an intra-session recess;
President Truman made Dean Acheson Under Secretary of State; and President
George H. W. Bush reappointed Alan Greenspan as Chairman of the Federal Reserve
Board. Id., at 11a, 12a, 40a. JUSTICE SCALIA does not dispute any of these
facts.

Not surprisingly, the publicly available opinions of Presidential
legal advisers that we have found are nearly unanimous in determining that the
Clause authorizes these appointments. In 1921, for example, Attorney General
Daugherty advised President Harding that he could make intra-session recess
appointments. He reasoned:

"If the President's power of appointment is to
be defeated because the Senate takes an adjournment to a specified date, the
painful and inevitable result will be measurably to prevent the exercise of
governmental functions. I can not bring myself to believe that the framers of
the Constitution ever intended such a catastrophe to happen." 33 Op. Atty. Gen.
20, 23.

We must note one contrary opinion authored by President Theodore
Roosevelt's Attorney General Philander Knox. Knox advised the President that the
Clause did not cover a 19-day intra-session Christmas recess. 23 Op. Atty. Gen.
599 (1901). But in doing so he relied heavily upon the use of the word "the," a
linguistic point that we do not find determinative. See supra, at 10. And Knox
all but confessed that his interpretation ran contrary to the basic purpose of
the Clause. For it would permit the Senate to adjourn for "several months," to a
fixed date, and thereby "seriously curtail the President's power of making
recess appointments." 23 Op. Atty. Gen., at 603. Moreover, only three days
before Knox gave his opinion, the Solicitor (*12) of the Treasury came to the
opposite conclusion. Reply Brief 7, n. 5. We therefore do not think Knox's
isolated opinion can disturb the consensus advice within the Executive Branch
taking the opposite position.

What about the Senate? Since Presidents
began making intra-session recess appointments, individual Senators have taken
differing views about the proper definition of "the recess." See, e.g., 130
Cong. Rec. 23234 (1984) (resolution introduced by Senator Byrd urging limits on
the length of applicable intra-session recesses); Brief for Sen. Mitch McConnell
et al. as Amici Curiae 26 (an intra-session adjournment does not count as "the
recess"); Brief for Sen. Edward M. Kennedy as Amicus Curiae in Franklin v.
United States, O. T. 2004, No. 04-5858, p. 5 (same). But neither the Senate
considered as a body nor its committees, despite opportunities to express
opposition to the practice of intra-session recess appointments, has done so.
Rather, to the extent that the Senate or a Senate committee has expressed a
view, that view has favored a functional definition of "recess," and a
functional definition encompasses intra-session recesses.

Most notably,
in 1905 the Senate Committee on the Judiciary objected strongly to President
Theodore Roosevelt's use of the Clause to make more than 160 recess appointments
during a "fictitious" inter-session recess. S. Rep. No. 4389, 58th Cong., 3d
Sess., p. 2 (hereinafter 1905 Senate Report). At noon on December 7, 1903, the
Senate President pro tempore had "declared" a formal, "extraordinary session" of
the Senate "adjourned without day," and the next formal Senate session began
immediately afterwards. 37 Cong. Rec. 544 (1903). President Roosevelt made over
160 recess appointments during the instantaneous inter-session interval. The
Judiciary Committee, when stating its strong objection, defined "recess" in
functional terms as

"the period of time when the Senate is not sitting in
regular or extraordinary session as a branch of the Congress . . . ; when its
members owe no duty of attendance; when its Chamber is empty; when, because of
its absence, it can not receive communications from the President or participate
as a body in making appointments." 1905 Senate Report, at 2 (emphasis
deleted).

That functional definition encompasses intra-session, as well
as inter-session, recesses. JUSTICE SCALIA is right that the 1905 Report did not
specifically address the dis-tinction between inter-session and intra-session
recesses. But the animating principle of the Report-that "recess" should be
practically construed to mean a time when the Senate is unavailable to
participate in the appointments process-is inconsistent with the formalistic
approach that JUSTICE SCALIA endorses.

Similarly, in 1940 the Senate
helped to enact a law regulating the payment of recess appointees, and the
Comptroller General of the United States has interpreted that law functionally.
An earlier 1863 statute had denied pay to individuals appointed to fill up
vacancies first arising prior to the beginning of a recess. The Senate Judiciary
Committee then believed that those vacancies (*13) fell outside the scope of the
Clause. See infra, at 30. In 1940, however, the Senate amended the law to permit
many of those recess appointees to be paid. Act of July 11, 54 Stat. 751 .
Interpreting the amendments in 1948, the Comptroller General-who, unlike the
Attorney General, is an "officer of the Legislative Branch," Bowsher v. Synar,
478 U.S. 714 , 731 (1986)-wrote:

"I think it is clear that (the Pay Act
amendments) primary purpose was to relieve 'recess appointees' of the burden of
serving without compensation during periods when the Senate is not actually
sitting and is not available to give its advice and consent in respect to the
appointment, irrespective of whether the recess of the Senate is attributable to
a final adjournment sine die or to an adjournment to a specified date." 28 Comp.
Gen. 30, 37.

We recognize that the Senate cannot easily register
opposition as a body to every governmental action that many, perhaps most,
Senators oppose. But the Senate has not been silent or passive regarding the
meaning of the Clause: A Senate Committee did register opposition to President
Theodore Roosevelt's use of the Clause, and the Senate as a whole has legislated
in an effort to discourage certain kinds of recess appointments. And yet we are
not aware of any formal action it has taken to call into question the broad and
functional definition of "recess" first set out in the 1905 Senate Report and
followed by the Executive Branch since at least 1921. Nor has JUSTICE SCALIA
identified any. All the while, the President has made countless recess
appointments during intra-session recesses.

The upshot is that
restricting the Clause to inter-session recesses would frustrate its purpose. It
would make the President's recess-appointment power dependent on a formalistic
distinction of Senate procedure. Moreover, the President has consistently and
frequently interpreted the word "recess" to apply to intra-session recesses, and
has acted on that interpretation. The Senate as a body has done nothing to deny
the validity of this practice for at least three-quarters of a century. And
three-quarters of a century of settled practice is long enough to entitle a
practice to "great weight in a proper interpretation" of the constitutional
provision. The Pocket Veto Case, 279 U.S., at 689 .

We are aware of, but
we are not persuaded by, three important arguments to the contrary. First, some
argue that the Founders would likely have intended the Clause to apply only to
inter-session recesses, for they hardly knew any other. See, e.g., Brief for
Originalist Scholars as Amici Curiae 27-29. Indeed, from the founding until the
Civil War inter-session recesses were the only kind of significant recesses that
Congress took. The problem with this argument, however, is that it does not
fully describe the relevant founding intent. The question is not: Did the
Founders at the time think about intra-session recesses? Perhaps they did not.
The question is: Did the Founders intend to restrict the scope of the Clause to
the form of congressional recess then prevalent, or did they intend a broader
scope permitting the Clause (*14) to apply, where appropriate, to somewhat
changed circumstances? The Founders knew they were writing a document designed
to apply to ever-changing circumstances over centuries. After all, a
Constitution is "intended to endure for ages to come," and must adapt itself to
a future that can only be "seen dimly," if at all. McCulloch, 4 Wheat., at 415 .
We therefore think the Framers likely did intend the Clause to apply to a new
circumstance that so clearly falls within its essential purposes, where doing so
is consistent with the Clause's language.

Second, some argue that the
intra-session interpretation permits the President to make "illogically" long
recess appointments. Brief for Respondent Noel Canning 13; post, at 10 (SCALIA,
J., concurring in judgment). A recess appointment made between Congress' annual
sessions would permit the appointee to serve for about a year, i.e., until the
"end" of the "next" Senate "session." Art. II, §2, cl. 3 . But an intra-session
appointment made at the beginning or in the middle of a formal session could
permit the appointee to serve for 1½ or almost 2 years (until the end of the
following formal session).

We agree that the intra-session interpretation
permits somewhat longer recess appointments, but we do not agree that this
consequence is "illogical." A President who makes a recess appointment will
often also seek to make a regular appointment, nominating the appointee and
securing ordinary Senate confirmation. And the Clause ensures that the President
and Senate always have at least a full session to go through the nomination and
confirmation process. That process may take several months. See O'Connell,
Vacant Offices: Delays in Staffing Top Agency Positions, 82 S. Cal. L. Rev. 913,
967 (2009) (from 1987 to 2005 the nomination and confirmation process took an
average of 236 days for noncabinet agency heads). A recess appointment that
lasts somewhat longer than a year will ensure the President the continued
assistance of subordinates that the Clause permits him to obtain while he and
the Senate select a regular appointee. An appointment should last until the
Senate has "an opportunity to act on the subject," Story, §1551, at 410, and the
Clause embodies a determination that a full session is needed to select and vet
a replacement.

Third, the Court of Appeals believed that application of
the Clause to intra-session recesses would introduce "vagueness" into a Clause
that was otherwise clear. 705 F. 3d, at 504 . One can find problems of
uncertainty, however, either way. In 1867, for example, President Andrew Johnson
called a special session of Congress, which took place during a lengthy
intra-session recess. Consider the period of time that fell just after the
conclusion of that special session. Did that period remain an intra-session
recess, or did it become an inter-session recess? Historians disagree about the
answer. Compare Hartnett, 26 Cardozo L. Rev., at 408-409, with Brief for
Constitutional Law Scholars as Amici Curiae 23-24.

Or suppose that
Congress adjourns sine die, but it does so conditionally, so that the leadership
can call (*15) the members back into session when "the public interest shall
warrant it." E.g., 155 Cong. Rec. 33429 (2009); 152 Cong. Rec. 23731-23732
(2006); 150 Cong. Rec. 25925-25926 (2004). If the Senate Majority Leader were to
reconvene the Senate, how would we characterize the preceding recess? Is it
still inter-session? On the narrower interpretation the label matters; on the
broader it does not.

The greater interpretive problem is determining how
long a recess must be in order to fall within the Clause. Is a break of a week,
or a day, or an hour too short to count as a "recess"? The Clause itself does
not say. And JUSTICE SCALIA claims that this silence itself shows that the
Framers intended the Clause to apply only to an inter-session recess. Post, at
12-13.

We disagree. For one thing, the most likely reason the Framers did
not place a textual floor underneath the word "recess" is that they did not
foresee the need for one. They might have expected that the Senate would meet
for a single session lasting at most half a year. The Federalist No. 84, at 596
(A. Hamilton). And they might not have anticipated that intra-session recesses
would become lengthier and more significant than inter-session ones. The
Framers' lack of clairvoyance on that point is not dispositive. Unlike JUSTICE
SCALIA, we think it most consistent with our constitutional structure to presume
that the Framers would have allowed intra-session recess appointments where
there was a long history of such practice.

Moreover, the lack of a
textual floor raises a problem that plagues both interpretations-JUSTICE
SCALIA's and ours. Today a brief inter-session recess is just as possible as a
brief intra-session recess. And though JUSTICE SCALIA says that the "notion that
the Constitution empowers the President to make unilateral appointments every
time the Senate takes a half-hour lunch break is so absurd as to be
self-refuting," he must immediately concede (in a footnote) that the President
"can make recess appointments during any break between sessions, no matter how
short." Post, at 11, 15, n. 4 (emphasis added).

Even the Solicitor
General, arguing for a broader interpretation, acknowledges that there is a
lower limit applicable to both kinds of recess. He argues that the lower limit
should be three days by analogy to the Adjournments Clause of the Constitution.
Tr. of Oral Arg. 11. That Clause says: "Neither House, during the Session of
Congress, shall, without the Consent of the other, adjourn for more than three
days." Art. I, §5, cl. 4 .

We agree with the Solicitor General that a
3-day recess would be too short. (Under Senate practice, "Sunday is generally
not considered a day," and so is not counted for purposes of the Adjournments
Clause. S. Doc. No. 101-28, F. Riddick & A. Frumin, Riddick's Senate
Procedure: Precedents and Practices 1265 (hereinafter Riddick's).) The
Adjournments Clause reflects the fact that a 3-day break is not a significant
interruption of legislative business. As the Solicitor General says, it is
constitutionally de minimis. Brief for Petitioner 18. A Senate recess that is so
short that it does not require the consent (*16) of the House is not long enough
to trigger the President's recess-appointment power.

That is not to say
that the President may make recess appointments during any recess that is "more
than three days." Art. I, §5, cl. 4 . The Recess Appointments Clause seeks to
permit the Executive Branch to function smoothly when Congress is unavailable.
And though Congress has taken short breaks for almost 200 years, and there have
been many thousands of recess appointments in that time, we have not found a
single example of a recess ap-pointment made during an intra-session recess that
was shorter than 10 days. Nor has the Solicitor General. Reply Brief 23. Indeed,
the Office of Legal Counsel once informally advised against making a recess
appointment during a 6-day intra-session recess. 3 Op. OLC, at 315-316. The lack
of examples suggests that the recess-appointment power is not needed in that
context. (The length of a recess is "ordinarily calculated by counting the
calendar days running from the day after the recess begins and including the day
the recess ends." 36 Op. OLC, at ___, n. 1 (citation omitted).)

There are
a few historical examples of recess appointments made during inter-session
recesses shorter than 10 days. We have already discussed President Theodore
Roosevelt's appointments during the instantaneous, "fictitious" recess.
President Truman also made a recess appointment to the Civil Aeronautics Board
during a 3-day inter-session recess. Hogue, Recess Appointments: Fre-quently
Asked Questions, at 5-6. President Taft made a few appointments during a 9-day
recess following his inauguration, and President Lyndon Johnson made sev-eral
appointments during an 8-day recess several weeks after assuming office. Hogue,
The Law: Recess Appointments to Article III Courts, 34 Presidential Studies Q.
656, 671 (2004); 106 S. Exec. J. 2 (1964); 40 S. Exec. J. 12 (1909). There may
be others of which we are unaware. But when considered against 200 years of
settled practice, we regard these few scattered examples as anomalies. We
therefore conclude, in light of historical practice, that a recess of more than
3 days but less than 10 days is presumptively too short to fall within the
Clause. We add the word "presumptively" to leave open the possibility that some
very unusual circumstance-a national catastrophe, for instance, that renders the
Senate unavailable but calls for an urgent response-could demand the exercise of
the recess-appointment power during a shorter break. (It should go without
saying-except that JUSTICE SCALIA compels us to say it-that political opposition
in the Senate would not qualify as an unusual circumstance.)

In sum, we
conclude that the phrase "the recess" applies to both intra-session and
inter-session recesses. If a Senate recess is so short that it does not require
the consent of the House, it is too short to trigger the Recess Appointments
Clause. See Art. I, §5, cl. 4 . And a recess lasting less than 10 days is
presumptively too short as well.

IVThe second question concerns the
scope of the phrase "vacancies that may happen during the recess of the Senate."
(*17) Art. II, §2, cl. 3 (emphasis added). All agree that the phrase applies to
vacancies that initially occur during a recess. But does it also apply to
vacancies that initially occur before a recess and continue to exist during the
recess? In our view the phrase applies to both kinds of vacancy.

We
believe that the Clause's language, read literally, permits, though it does not
naturally favor, our broader interpretation. We concede that the most natural
meaning of "happens" as applied to a "vacancy" (at least to a modern ear) is
that the vacancy "happens" when it ini-tially occurs. See 1 Johnson 913
(defining "happen" in relevant part as meaning "to fall out; to chance; to come
to pass"). But that is not the only possible way to use the word.

Thomas
Jefferson wrote that the Clause is "certainly susceptible of (two)
constructions." Letter to Wilson Cary Nicholas (Jan. 26, 1802), in 36 Papers of
Thomas Jefferson 433 (B. Oberg ed., 2009). It "may mean 'vacancies that may
happen to be' or 'may happen to fall' " during a recess. Ibid. Jefferson used
the phrase in the first sense when he wrote to a job seeker that a particular
position was unavailable, but that he (Jefferson) was "happy that another
vacancy happens wherein I can . . . avail the public of your integrity &
talents," for "the office of Treasurer of the US. is vacant by the resignation
of mr Meredith." Letter to Thomas Tudor Tucker (Oct. 31, 1801), in 35 id., at
530 (B. Oberg ed. 2008) (emphasis added). See also Laws Passed by the
Legislature of Florida, No. 31, An Act to Organize and Regulate the Militia of
the Territory of Florida §13, H. R. Exec. Doc. No. 72, 27th Cong., 3d Sess., 22
(1842) ("When any vacancy shall take place in the office of any lieutenant
colonel, it shall be the duty of the colonel of the regiment in which such
vacancy may happen to order an election to be held at the several precincts in
the battalion in which such vacancy may happen" (emphasis
added)).

Similarly, when Attorney General William Wirt advised President
Monroe to follow the broader interpretation, he wrote that the "expression seems
not perfectly clear. It may mean 'happen to take place:' that is, 'to
originate,' " or it "may mean, also, without violence to the sense, 'happen to
exist.' " 1 Op. Atty. Gen. 631, 631-632 (1823). The broader interpretation, he
added, is "most accordant with" the Constitution's "reason and spirit." Id., at
632.

We can still understand this earlier use of "happen" if we think of
it used together with another word that, like "vacancy," can refer to a
continuing state, say, a financial crisis. A statute that gives the President
authority to act in respect to "any financial crisis that may happen during his
term" can easily be interpreted to include crises that arise before, and
continue during, that term. Perhaps that is why the Oxford English Dictionary
defines "happen" in part as "chance to be," rather than "chance to occur." 6 OED
1096 (emphasis added); see also 19 OED 383 (defining "vacancy" as the "condition
of an office or post being . . . vacant").

In any event, the linguistic
question here is not whether the phrase can be, but whether it must be, read
more narrowly. The question is whether the Clause is ambiguous. The Pocket Veto
Case (*18) , 279 U.S., at 690 . And the broader reading, we believe, is at least
a permissible reading of a " 'doubtful' " phrase. Ibid. We consequently go on to
consider the Clause's purpose and historical practice.

The Clause's
purpose strongly supports the broader interpretation. That purpose is to permit
the President to obtain the assistance of subordinate officers when the Senate,
due to its recess, cannot confirm them. Attorney General Wirt clearly described
how the narrower interpretation would undermine this purpose:

"Put the
case of a vacancy occurring in an office, held in a distant part of the country,
on the last day of the Senate's session. Before the vacancy is made known to the
President, the Senate rises. The office may be an important one; the vacancy may
paralyze a whole line of action in some essential branch of our internal police;
the public interests may imperiously demand that it shall be immediately filled.
But the vacancy happened to occur during the session of the Senate; and if the
President's power is to be limited to such vacancies only as happen to occur
during the recess of the Senate, the vacancy in the case put must continue,
however ruinous the consequences may be to the public." 1 Op. Atty. Gen., at
632.

Examples are not difficult to imagine: An ambassadorial post falls
vacant too soon before the recess begins for the President to appoint a
replacement; the Senate rejects a President's nominee just before a recess, too
late to select another. Wirt explained that the "substantial purpose of the
constitution was to keep these offices filled," and "if the President shall not
have the power to fill a vacancy thus circumstanced, . . . the substance of the
constitution will be sacrificed to a dubious construction of its letter." Ibid.
Thus the broader construction, encompassing vacancies that initially occur
before the beginning of a recess, is the "only construction of the constitution
which is compatible with its spirit, reason, and purposes; while, at the same
time, it offers no violence to its language." Id., at 633.

We do not
agree with JUSTICE SCALIA's suggestion that the Framers would have accepted the
catastrophe envisioned by Wirt because Congress can always provide for acting
officers, see 5 U.S.C. §3345 , and the President can always convene a special
session of Congress, see U.S. Const., Art. II, §3 . Acting officers may have
less authority than Presidential appointments. 6 Op. OLC 119, 121 (1982).
Moreover, to rely on acting officers would lessen the President's ability to
staff the Executive Branch with people of his own choosing, and thereby limit
the President's control and political accountability. Cf. Free Enterprise Fund
v. Public Company Accounting Oversight Bd., 561 U.S. 477 , 497-498 (2010).
Special sessions are burdensome (and would have been especially so at the time
of the founding). The point of the Recess Appointments Clause was to avoid
reliance on these inadequate expedients.

At the same time, we recognize
one important purpose-related consideration that argues in the opposite
direction. A broad interpretation might permit a President to avoid Senate
confirmations as a matter of course. If the Clause gives the (*19) President the
power to "fill up all vacancies" that occur before, and continue to exist
during, the Senate's recess, a President might not submit any nominations to the
Senate. He might simply wait for a recess and then provide all potential
nominees with recess appointments. He might thereby routinely avoid the
constitutional need to obtain the Senate's "advice and consent."

Wirt
thought considerations of character and politics would prevent Presidents from
abusing the Clause in this way. 1 Op. Atty. Gen., at 634. He might have added
that such temptations should not often arise. It is often less desirable for a
President to make a recess appointment. A recess appointee only serves a limited
term. That, combined with the lack of Senate approval, may diminish the recess
appointee's ability, as a practical matter, to get a controversial job done. And
even where the President and Senate are at odds over politically sensitive
appointments, compromise is normally possible. Indeed, the 1940 Pay Act
amendments represent a general compromise, for they foresee payment of salaries
to recess appointees where vacancies occur before the recess began but not too
long before (namely, within 30 days before). 5 U.S.C. §5503(a)(1) ; see infra,
at 32. Moreover, the Senate, like the President, has institutional "resources,"
including political resources, "available to protect and assert its interests."
Goldwater v. Carter, 444 U.S. 996 , 1004 (1979) (Rehnquist, J., concurring in
judgment). In an unusual instance, where a matter is important enough to the
Sen-ate, that body can remain in session, preventing recess appointments by
refusing to take a recess. See Part V, infra. In any event, the Executive Branch
has adhered to the broader interpretation for two centuries, and Senate
confirmation has always remained the norm for officers that require
it.

While we concede that both interpretations carry with them some risk
of undesirable consequences, we believe the narrower interpretation risks
undermining constitutionally conferred powers more seriously and more often. It
would prevent the President from making any recess appointment that arose before
a recess, no matter who the official, no matter how dire the need, no matter how
uncontroversial the appointment, and no matter how late in the session the
office fell vacant. Overall, like Attorney General Wirt, we believe the broader
interpretation more consistent with the Constitution's "reason and spirit." 1
Op. Atty. Gen., at 632.

Historical practice over the past 200 years
strongly favors the broader interpretation. The tradition of applying the Clause
to pre-recess vacancies dates at least to President James Madison. There is no
undisputed record of Presidents George Washington, John Adams, or Thomas
Jefferson making such an appointment, though the Solicitor General believes he
has found records showing that Presidents Washington and Jefferson did so. We
know that Edmund Randolph, Washington's Attorney General, favored a narrow
reading of the Clause. Randolph believed that the "Spirit of the Constitution
favors the participation of the Senate (*20) in all appointments," though he did
not address-let alone answer-the powerful purposive and structural arguments
subsequently made by Attorney General Wirt. See Edmund Randolph's Opinion on
Recess Appointments (July 7, 1792), in 24 Papers of Thomas Jefferson 166 (J.
Catanzariti ed. 1990).

President Adams seemed to endorse the broader view
of the Clause in writing, though we are not aware of any appointments he made in
keeping with that view. See Letter to J. McHenry (Apr. 16, 1799), in 8 Works of
John Adams 632-633 (C. Adams ed. 1853). His Attorney General, Charles Lee, later
informed Jefferson that, in the Adams administration, "whenever an office became
vacant so short a time before Congress rose, as not to give an opportunity of
enquiring for a proper character, they let it lie always till recess." 36 Papers
of Thomas Jefferson 433. We know that President Jefferson thought that the broad
interpretation was linguistically supportable, though his actual practice is not
clear. But the evidence suggests that James Madison-as familiar as anyone with
the workings of the Constitutional Convention-appointed Theodore Gaillard to
replace a district judge who had left office before a recess began. Hartnett, 26
Cardozo L. Rev., at 400-401. It also appears that in 1815 Madison signed a bill
that created two new offices prior to a recess which he then filled later during
the recess. See Act of Mar. 3, ch. 95, 3 Stat. 235 ; S. J. 13th Cong., 3d Sess.,
689-690 (1815); 3 S. Exec. J. 19 (1828) (for Monday, Jan. 8, 1816). He also made
recess appointments to "territorial" United States attorney and marshal
positions, both of which had been created when the Senate was in session more
than two years before. Act of Feb. 27, 1813, ch. 35, 2 Stat. 806 ; 3 S. Exec. J.
19. JUSTICE SCALIA refers to "written evidence of Madison's own beliefs," post,
at 36, but in fact we have no direct evidence of what President Madison
believed. We only know that he declined to make one appointment to a pre-recess
vacancy after his Secretary of War advised him that he lacked the power. On the
other hand, he did apparently make at least five other appointments to
pre-recess vacancies, as JUSTICE SCALIA does not dispute.

This power is
important. The Congressional Research Service is "unaware of any official source
of information tracking the dates of vacancies in federal offices." The Noel
Canning Decision 3, n. 6. Nonetheless, we have enough information to believe
that the Presidents since Madison have made many recess appointments filling
vacancies that initially occurred prior to a recess. As we have just said,
nearly every 19th- and 20th-century Attorney General expressing a view on the
matter has agreed with William Wirt, and Presidents tend to follow the legal
advice of their chief legal officers. Moreover, the Solicitor General has
compiled a list of 102 (mostly uncontested) recess appointments made by
Presidents going back to the founding. App. to Brief for Petitioner 65a-89a.
Given the difficulty of finding accurate information about vacancy dates, that
list is undoubtedly far smaller than the actual number. No one disputes that
every President since James Buchanan has made recess appointments to
pre-existing vacancies.

Common sense also suggests that many recess
appointees filled vacancies that arose before the recess began. .......... SEE MORE

On Thursday, June 26, 2014, the United States Supreme Court ruled the three recess appointments President Obama made to the National Labor Relations Board (“NLRB” or “Board”) in January 2012 were invalid and unconstitutional. InNLRB v. Noel Canning, the Supreme Court unanimously ruled that President Obama exceeded his powers when he by-passed Congress and unilaterally appointed three Board members to the NLRB in January 2012. The issue turned on whether Congress was in “recess” at the time the appointments were made – as claimed by the President – or on an intra-session break as claimed by the employer group that filed the case.

All nine Supreme Court Justices ruled that the President exceeded his powers with the January 2012 appointments. However, five Justices (Breyer, Kennedy, Ginsburg, Sotomayer, and Kagan) joined in basing their decision on the fact the Senate break during which the President made these particular appointments was only three days in duration. The majority opinion written by Justice Breyer noted: “Ultimately, having examined the history, we find that to count as a ‘recess,’ a break—whether intersession or intra-session—must normally last for 10 days or more. That is a length sufficient to create a potential need for a presidential appointment.”

The other four Justices (Scalia, Roberts, Thomas, and Alito) joined in a concurring opinion that reads more like a dissent because of its attack on the majority opinion and call for a more literal application of the Constitution and the high court’s separation-of-powers. This opinion, written by Justice Scalia, asserts: “The majority practically bends over backwards to ensure that recess appointments will remain a powerful weapon in the president’s arsenal,” and would likely “have the effect of aggrandizing the presidency beyond its constitutional bounds…well beyond the dispute at hand.”

The immediate fall-out from the Supreme Court’s decision will be dramatic. Over 100 cases involving challenges to the validity of decisions issued by the illegally-appointed Board members are currently pending in the federal court system. According to an NLRB spokesperson, the Board issued over 400 decisions in contested cases between Jan. 31, 2012, and July 16, 2013. The validity of many of these decisions is now in question.

The NLRB does currently have a full five-member panel, all of whom were approved by the Senate. Three of the current members are “Democratic” (considered to be pro-labor) appointees and two are “Republican” (pro-employer) appointees. So, many of the Board decisions and legal holdings rendered invalid by the Supreme Court’s decision could be rehabilitated by the current Board. However, for now, the only guidance the NLRB has provided is the following press release from current NLRB Chairman Pearce:

“The Supreme Court has today decided theNoel Canningcase. We are analyzing the impact that the Court’s decision has on Board cases in which the January 2012 recess appointees participated. Today, the National Labor Relations Board has a full contingent of five Senate-confirmed members who are prepared to fulfill our responsibility to enforce the National Labor Relations Act. The Agency is committed to resolving any cases affected by today’s decision as expeditiously as possible.”

I was so impressed with Olivia (plus
I'm always looking to feature the voices of teachers and education
professionals who are on the ground) that I solicited a guest post from her. If
she is symbolic of the young, smart, dedicated, and energetic teachers that
neo-liberal reformers so often talk of attracting and keeping in the teaching
profession, from Olivia's account below, they're not doing a very good job.
Who, especially with all those qualities, lasts long in a stifling and absurd
environment such as Olivia describes? For our nation's sake, I pray that Olivia
and so many of the discouraged newer teachers I've talked to in recent years
stick it out. We need you!

I am sad to
announce that after five years of
teaching in DC Public schools, Olivia has resigned and to start her own
business with a like-minded friend and former teacher. Olivia received her
Professional Coaching Certification and now coaches adults and teens to reach
their personal, wellness and career goals. Still passionate about teaching,
Olivia's company,Natural Greatness Coachingoffers a character education workshop for
young ladies in grades 5-10. Olivia wrote the followingin
response to DCPS's question on the "Declaration of Intent to Not Return
Form for Resigning or Retiring Teachers" :

What could DCPS
have done to retain you in the district?

I truly don't think that there is anything that you could have done to retain
me in the district. Our educational philosophies do not align, specifically
what those philosophies look like in action, not necessarily how they are written
and presented. Although it would seem that your will and proclaimed dedication
to educating all students and improving struggling schools are aligned to my
own beliefs; stating your beliefs and acting on them can be extremely
different.

In my opinion and based on five years of experience in a struggling school
(which I believe you now call a "40-40" school), the actions that you
have imposed that are supposed to be helping to educate all students and
improve the education of underprivileged students are backfiring. I know some
of your test scores are going up, but that means so little when morale
decreases and discontent from the community, teachers and students increase.
Additionally, student behavior continues to worsen as their teachers are
"impacted out", the students are over-tested and the constant change
in leadership causes students to lose faith in anyone sticking around long
enough to invest in their successes. Your standards are higher while our
resources are lower and the teachers are less effective because of constant
turnover and poor training programs (Yes, I am referring to Teach for America
and DC Teaching Fellows).

IMPACT and high stakes standardized testing are deteriorating education. I have
enjoyed working with each and every one of my students, as challenging as some
of them may be, but I can no longer participate in a system that is tearing
them down, wasting their time and breaking their spirits. I can no longer
participate in the rigid guidelines of IMPACT/Common Core/Standardized testing;
it is not what my kids need or ever needed to be successful. Yes, they need
quality teachers, learning standards and assessments-but the manner in which
you have delivered these three essential components of education are not
effective. I have been witness to this for five years. You can throw data and
numbers at me all you want, but it is not working for my students nor my
school, and I know I am not alone in stating this, especially in Ward 8. You
have poured enormous amounts of money into IMPACT and testing and not nearly
enough into professional development, technology or character education
programs for students. We have lacked the supplies and trainings to properly
implement Common Core for the last three years. Honestly, you can call the standards
whatever you want, revise them, increase their "rigor", do whatever
you please; but until communities, families, parents and students are held
accountable for their participation in education, none of this matters.

I believe that every child can learn and has potential to do something great
with their lives. Unfortunately, I do not believe that the testing regimen
implemented by DCPS is a positive way to show off their potential, their
greatness or even their basic intelligence. Also, I do not believe that all of
them are cut out for college. I don't believe all children should go or need to
go to college to be successful. I believe that what they need are supportive
communities of people that help them to maximize their potential and turn their
interests and passions into careers (which may or may not require a college
degree).

DCPS' commitment to turning children from reds and yellows to greens and blues
in reading and math, while simultaneously cutting extracurricular activities
and special subjects are 100% contradictory to my moral and educational
philosophies. A positive outcome for me at the end of the year is a student who
has improved in all subject areas, including the arts, a sport, a hobby or a
special interest. Of course, I also want them to improve their reading, as I
believe that if a child can read they can do and learn ANYTHING, which is
empowering in itself. I truly hope that they understand that as well.

More imperatively, my goal is that each student leaves my class with an increased
desire to learn and a more directed focus in regards to what they are
interested in, and how they can turn these subjects or passion-based interests
into careers. To be honest, whether students score high on a standardized
assessment means almost nothing to me. If I cared a little in the past, it was
for selfish reasons like trying to stay in the district and not have myself be
"impacted out". It wasn't because I actually thought it meant
something for the child or their future.

I have battled with guilt over not caring more about test scores, as well as
for disappointing my colleagues and school leaders because I refuse to buy into
the hype of testing. I refuse to buy into spending hours on test-prep and
practice sheets as well as the spirit week and the pep rally the week before
DC-CAS begins. I have felt guilty that I may be a liability to my school
because I believe that children should be allowed to go to the bathroom during
testing, as well as be told that they are on the wrong page of the test
booklet, or told to look over their work before they hand it in, or god-forbid,
read a book when they have finished their test. I'm sure that by me not falling
victim to the intended fear that they try to instill in teachers in regards to
cheating and overall testing procedures have been a pain in the butt for my
administrators. I just cannot take the whole testing mentality seriously. When
I know what my students' real issues are and what the world that they actually
face is like when they walk out of our school's doors it is just a reminder of
why what you are doing is not really working for these kids.

At this point, I think you have a clear understanding of why I must leave DCPS;
it would be a disservice for me to stay any longer pretending that I believe in
what you are doing. I believe that the contradictory philosophies are confusing
to my students, a pain for my administrators and a burden that I can no longer
bear. I will miss the students because their potential has energized me. Their
will to learn meaningful content as well as learn about themselves is what
brought me back every year. This was a difficult choice to make, because I have
really loved watching my students make progress and grow each year. I hope that
I will see many of them again.

Thank you for employing me for the past five years, and for giving me the
opportunity to educate hundreds of students in DC. Although we do not see eye
to eye on what a quality and meaningful education looks like, I do hope that
DCPS will one day find success in implementing a program that genuinely
improves the education of all district students, especially the struggling
schools in Ward 8, who deserve so much more than what they are given.

If you are an employee of the NYC Department of Education it is wise to know what you can do with your DOE computer and email. You can be discontinued (if you have no tenure) or brought to 3020-a for any and all allegations of misconduct or violations of the social media guidelines. Common sense will rule. USE IT!

Betsy Combier

NYC DOE

The Staff Social Media Guidelines recommend practices for professional social media communication between DOE employees, as well as social media communication between DOE employees and their students. The Staff Social Media Guidelines also address recommended practices for use of personal social media by DOE staff.

Teachers’ Guide to Student Social Media Guidelines

In an increasingly digital world, we want our students to have all the opportunities that multi-media learning can provide, which is why we allow and encourage the appropriate use of these powerful resources. The Teachers’ Guide to Student Social Media Guidelines helps educators challenge our students with new methods of learning, while ensuring that we are using these tools responsibly.

This summer we are offering tech PD in partnership with Common Sense Media, Edmodo, Google, Microsoft, PBS, and SMART technologies. You can get more information about the programs (you'll need to log in with your DOE username and password) or go directly to the application.

There seems to be a news story every day detailing employee misuse of social media. In fact, in a recentsurveyreleased by Proskauer Rose LLP, more than 70 percent of the 110 businesses surveyed reported they had to take disciplinary action against employees for misusing the technology.

Living in the U.S.A., we have grown accustomed to seeing corporate mis-tweets, where an employee accidently posts a personal tweet from a corporate account, and rogue employee cases, where an employee purposefully posts something inappropriate to a corporate social media account.

But now, introducing a new type of corporate social media mishap, where an employee posts defamatory remarks to an online forum anonymously … from the employee’s company computer … and the employer gets sued for defamation. I’ll pause while that sinks in.

Our cautionary tale comes fromMiller v. Federal Express Corp., a case out of Indianapolis where the plaintiffs sued FedEx and 500 Festival for defamation and intentional infliction of emotional distress based solely on the fact that someone using their computers posted allegedly defamatory comments about the plaintiffs. While I can tell you that this cautionary tale has a [spoiler alert] happy ending for FedEx and 500 Festival, this case serves as a reminder to employers to tighten those social media policies and take action against employees who are discovered to be making such statements using the company’s computers.

Jeffrey Miller was a member of the Indiana business community and an employee of a non-profit organization. In the spring of 2008, heworkedon a project between two non-profits (one he had worked for in the past and one he was then working for) to build a school. Construction on that project, however, was stopped two years later when the primary financial backer stopped payments allegedly due to defamatory statements by two co-defendants to the suit.

Later, abusinessmagazine published an online article regarding the allegations and the controversy surrounding the school construction. The article itself was harmless enough. But then came the online comments, and some of them were bad … really bad.

One comment posted under the username “JA Fan” read in relevant part:

The new CEO has inherited a mess not of her doing. The former CEO [Miller] and finally –fired VP’s misuse (for their own personal gain) of funds that were dedicated to educating Indiana children are at the very least an embarrassment to the dedicated staff who have continued to push on, and most likely acriminalact. If you were a donor or sponsor in the last decade to these guys, an audit is definitely in order.

Another posted under the handle “Really?” read in relevant part:

Does this include paying the contractors? As the fundraiser and key money guy, probably has an eye on revenue and expenses. … “what is so depressing and unfair is that the subcontractors were never told the funds were suspended and [the non-profits] let them keep working.” … If they told JA, who did not own the building or sign the construction contracts, I’m pretty sure as a tenant with an interest in what’s happening to the building, they would notify the Landlord, President Miller (who did the deal to bring Ivy Tech to the building, who also took money to fund the construction, who was also the “project manager” responsible for day-to-day operations) that his project is going to be halted and his building left in a mess. Now a storied and critical organization is a mess in his wake. Was it the great philosopher,Steve Miller,who said, “Go on,take the money and run!”? Perhaps a relative?

Another posted under “Concernd” read: “these guys are crooks (Jeff Miller, Victor George and other parties) and have been robbing from our community using kids as there [sic] hook. I hope they go tojail!!!!?

This made the Millers (husband and wife sued) wonder,Who’s Been Talkin’?Discovery revealed that the first two comments were made by the vice president of corporate sponsorship at 500 Festival using a company computer located at 500 Festival’s offices. The third comment was made by an unknown person from an IP address assigned to FedEx and was not traceable to any specific user. Rather, it belonged to one of FedEx’s proxy servers that filtered internet traffic from thousands of FedEx users.

The relevant, what-you-need-to-know, background about Section 230, which is the immunity provision of the CDA is that it protects companies that serve as intermediaries for online speech from liability for harmful content posted by third parties. Section 230 immunity protects online services, such as Google, Yahoo, and Microsoft, that host or republish third party content from liability based on what the third party says or does on the service. Holding otherwise would cripple internet speech.

Section 230 immunity requires a three-part showing:

The entity seeking immunity is a provider or user of an interactive computer service (ICS).

The plaintiff’s claim treats the entity seeking immunity as the publisher or speaker of the harmful information.

The information at issue was provided by another content provider.

Satisfying those three elements immunizes the defendant from suit, although the author of the offensive content could still be held liable.

InMiller, the court determined 500 Festival and FedEx were both ICS providers because they enabled computer access for multiple users on their respective computer networks to access the Internet by means of the servers on each network. In doing so, the court cited a few cases where employers were sued for online employee misconduct including:Delfino v. Agilent Technologies, Inc., 52 Cap.Rptr.3d 376 (Ca. Ct. App. 2006) (finding the employer was an ICS in suit against employer claiming an employee the employer claiming an employee sent them threatening emails and messages posted to online bulletin boards using the employer’s internet service connection); andLansing v. Sw. Airlines Co., 980 N.E.2d 630, 631 (Ill. App. Co. 2012) (finding the employer was an ICS in suit for negligent supervision over an employee who sent threatening messages).

The next element provides that the CDA only protects an ICS provider from claims that seek to hold it liable as a publisher. The court found that the Millers were indeed seeking to hold 500 Festivals and FedEx liable as publishers of the defamatory content (as opposed to theLansingcase where the claim was for negligent supervision and not publication). The court found that in suing 500 Festival and FedEx for defamation and intentional infliction of emotional distress that the Millers were certainly seeking to hold both employers as the publishers of the allegedly defamatory posts.

Lastly, the CDA only protects an ICS provider from information provided by someone else. The evidence clearly established that the problematic online posts came from an unknown FedEx user and from an employee of 500 Festival.

Finding the employers satisfied all three elements of Section 230, the court affirmed the trial court’s summary judgment dismissal and sent a message to the Millers toGive It Up.

Takeaways

Employers can try, but they will never be able to control what employees say using the employer’s internet service. The good news for employers is that Section 230 provides immunity for employers for suits that grow out of defamatory online speech made through their computers. But,Don’t Cha Know, it is not aPerfect World, and even with Section 230 immunity, it is important for employers to make sure that their social media or computer usage policies provide sufficient guidance to employees as to what is acceptable online speech that may be made through their computers and what is not. Employers should also be wary of theLansingopinion, which gives those harmed by defamatory speech a vehicle to go after employers whoknowtheir employees are making defamatory statements through use of their computers and do nothing to stop it. WhileI Want to Make the World Turn Aroundfor employers on these types of liability issues, the law is what the law is. The best practice for an employer is to have proper social media and computer usage policies, train employees on them, and if an employee violates either one, proceed with proper responsive discipline.

Testimonials From Some of Our Clients

“Dear Betsy,
I am forever indebted to you, Betsy, for your expert advice throughout a horrific ordeal. You worked tirelessly to prove my innocence in a 3020a proceeding that was instigated by a corrupt school district and fueled by lies. My proceedings ended with my complete exoneration, my record expunged and my immediate return to the classroom. We didn’t even need to file an appeal! Thank you, Betsy. I am now eligible to retire and enjoy the benefits you helped me to protect. God bless you and the work you do protecting the innocent
Maria G;

Alexandra F.

Dear Betsy,

I just wanted to reach out and say thank you for CONSTANTLY being there for me throughout such a tumultuous time in my life. I have been battling severe harassment at my place of work for months now, and you have advised me through every single second of it. I would not have had the strength or confidence to battle such an evil administration without your help. You have answered my phone calls from 7AM through nearly midnight with any and all of my concerns. I have called you countless times to just vent, or even cry, and you have been there with open arms to pivot my negative anticipations into positive advocacy. You have gone above and beyond your line of duty to help me, and for that, I can never repay you. You have changed the outcome of my life, and led me to justice. More importantly, you have led me to happiness again, for which I am eternally grateful. As I am getting older, I am realizing that there are many bad people in this world, but you are TRULY one of the good ones. When one finds a great person in life with their true best interest at heart, they should hold onto that and take their word as bond. My last statement truly defines you, an expert in what you do, as well as a 24 hour support system. You are amazing Betsy, and my life would truly not be the same if you had not stepped into it!!!!!

Thank you again for EVERYTHING you have done for me. Your advisement and care will be carried in my heart for the rest of my life.

Alexandra F.

Tollyne D.

After 18 years of service, the general consensus as a union member is that you cannot trust people and you have to be extremely careful who you talk to. I was brought up being told that I should be sure that the person I am speaking to is knowledgeable and to be TRUSTED, and Betsy Combier is such a person. She consistently proves that she is trustworthy, very knowledgeable and caring, time and time again.

Tollyne D.

David P.

To whom this may concern,
I want to recommend Betsy Combier as the best person you could have in your corner. From the first day I met Betsy I felt secure. I had the misfortune of having to go through a 3020a hearing and with help of Ms. Combier my job was secure, I don’t know where I would be without Betsy’s help and support. She is still assisting me with my federal case. I could not recommend Betsy any higher, she is a person of her word, and her expertise is important and necessary for everyone without any problem.
David P.

Jason R.

I met Betsy Combier approximately about 5 years ago, as a result of a recommendation from a colleague. Since then she has been an advocate of mine ever since, and has worked above and beyond my expectation. Betsy fights against the wrongdoing of public education officials in New York City. Throughout the extremely difficult arbitration, Betsy fought for my unalienable rights, even though my former principal did everything in her power to tarnish my name and damage my career.
Betsy is not an attorney yet she has the experience and knowledge that is above and beyond that of an attorney and follows through on all issues. She is truly an angel from heaven above, and a quality public defender.

Laura B.

I was charged with a 3020A in October 2016 after receiving three developing ratings in a row. I called numerous law firms as well as my union. Most people who I talked to said that I should settle because I was fighting a losing battle. A lawyer told me that anyone that says you can win a 3020A is a liar. I heard about Betsy from a teacher placed in my building who was going through the 3020A process. I hired Betsy and one of the Attorneys who works with her and her company, and won my case! Betsy saved my job and saved my life because she was emotionally supportive at a time when I needed it the most. Betsy goes above and beyond for her clients. She is readily available day and night for her clients. Betsy’s knowledge of education law is exceptional and she was a great help to my attorney. Betsy is relentless and fights hard for her clients.

ADVOCATZ

Contact me with a concern or issue

I assist anyone who needs help, so email me your problem to start the ball rolling! I am a teacher/parent advocate, and I am the editor/writer for this blog and the website parentadvocates.org. I also write about court corruption on my blog "NYC Court Corruption". I am interested in random injustice and the criminalizing of innocent people. If you want to chat you may email me at: betsy.combier@gmail.com and I'm on twitter and have a facebook page too. I'm not an attorney and do not give legal advice.

If you want to talk with me about your 3020-a charges, I consult and go over your case without charge. No fee.

And, in response to the lies of certain individuals who resent my work, the truth is that all conversations are confidential and I do not tape secretly.

Betsy Combier

My Thoughts and Raison d'etre

This blog is about the denial of Constitutional rights by the Mayor, the New York City Department of Education and the Chancellor, New York State and Federal Courts, New York State legislature, and the United Federation of Teachers (UFT), as well as PACs and all parties participating in the business of public school education in New York City, to harm and in neglect of parents, children, and staff of public schools in the five boroughs. These thoughts are not simply mindless conclusions reached out of thin air, but a result of 14 years of research into the NYC DOE and the Courts as a reporter and paralegal.
I am an advocate of Unions and union rights, public schools and charters, and learning online as well as outside of the classroom. I cannot and do not support anyone, whether they be union management, government, private members of the political or legal system, or simply retired teachers with an agenda, if he or she tramples, discards, or rebuffs anyone's individual civil rights. As a reporter, journalist, advocate, researcher and paralegal, I have created this blog to inform the public about my experience working for the UFT and being the parent of four daughters who went through the public school system in NYC, as well as examine issues that flow from the massive denial of due process rights that I saw and have documented. The two most important points you should remember: first, everyone at the New York City Board/Department of Education and all Union bigs are motivated by power and money, and looking good. If anyone dares to blow the whistle on these racketeers, retaliation follows, so be a strategist; second, I am not an Attorney and nothing I write or say is legal advice, simply my thoughts. Take 'em or leave 'em.
Betsy Combier, Editor
NYC Rubber Room Reporter
http://nycrubberroomreporter.blogspot.com
New York Court Corruption
http://newyorkcourtcorruption.blogspot.com
Parentadvocates.org
http://www.parentadvocates.org
Facebook: http://www.facebook.com/betsy.combier
Twitter: http://twitter.com/BetsyCombier
The NYC Public Voice
http://nycpublicvoice.blogspot.com/betsy.combier@gmail.com
Lawline July 27, 2011
http://www.teachem.com/lawlinetv/learn/lawline-tv-teachers-unions-the-last-in-first-out-rule/

Principal Anne Seifullah changes her image so that she can keep her job amidst sexting and trysts in the school, Robert Wagner Secondary Sch...

Google + Rubber Room Community

FAITH

When we walk to the edge of all the light we have and take the step into the darkness of the unknown, we must believe that one of two things will happen. There will be something solid for us to stand on or we will be taught to fly. Patrick Overton

Truth Seeks Light - Lies Seek Shadows

sayin like it is

Actions Have Consequences

Writing as Music

Rubber Room teachers wish me a happy birthday (2006)

"Educating the mind without educating the heart is no education at all."

- Aristotle

Important Numbers

Amy Arundel (ATR Point Person) 212-510-6468

UFT www.uft.org

OPI (Problem Code) 1-718-935-2666

UFT Certification Services 1-212-420-1830

Teachers REtirement System 1-888-869-2877

Mandated Reporters 1-800-635-1522

Staten Island UFT 1-718-605-1400

Brooklyn UFT 1-718-852-4900

Bronx UFT 1-718-379-6200

Manhattan UFT 1-212-598-6800

Queens UFT 1-718-275-4400

Rubber Room Satire

The Labor Movement

The Teaching Equation

We Can Work Out Our Differences

The E-Accountability Foundation

The E-Accountability Foundation brings you this blog which highlights issues that have or should be read by people interested in civil rights, and accountability. The E-Accountability Foundation is a 501(C)3 organization that holds people accountable for their actions online and, through the internet, seeks to bring justice to anyone who has been harmed without reason. We give the'A for Accountability' Awardto those who are willing to blow the whistle on unjust, misleading, or false actions and claims of the politico-educational complex in order to bring about educational reform in favor of children of all races, intellectual ability and economic status.

AddThis

Performance Management - Office of Labor Relations

From Betsy Combier

The NYC Office of Labor Relations, with the support of the UFT, has issued to principals a document called"Performance Management" on how to get rid of an incompetent teacher. Who is an "incompetent teacher"? Anyone the NYC Department of Education wants to remove from the system because he/she is too senior (makes too much money), is disabled (and therefore cannot be deemed factory-perfect) and/or is other impaired (is a whistleblower, cannot be intimidated, is ethnically challenged - not the 'right' race, etc).

Candace R. McLaren

Director, Office of Special Investigations (OSI)

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Polo Colon

"Rubber Room"

(1) a space where a worker subject to a disciplinary hearing or other administrative action waits and does no work; generally, a place or personal mind-set of isolation.(2) a literal reference to a padded cell, which is, according to the New Oxford American Dictionary, “a room in a psychiatric hospital with padded walls to prevent violent patients from injuring themselves.”from Double-Tongued Dictionary http://www.doubletongued.org/index.php/dictionary/rubber_room/

"Rubberization"

The word "rubberization" is a new word that is used to describe the process of assigning and paying people to sit and do nothing in a drab room away from their place of employment while their employers make up charges that allege sexual or corporal misconduct without any facts upon which to base the allegation on.

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Theresa Europe, NYC BOE ATU Director

Robin Greenfield

Deputy Counsel to the NYC DOE

UFT Pres. Mike Mulgrew and NYC Mayor Mike Bloomberg

UFT umbrella pals

New York State Supreme Court Judge Manuel Mendez

ATR CONNECT

Tenured Teachers who are found to be guilty of misconduct or incompetency at 3020-a but are not terminated, who have blown the whistle on the misconduct of politically favored NYC Department of Education employees, and/or who are simply disliked for any reason can suddenly find themselves in the ATR ("Absent Teacher Reserve") pool - employees without rights or voices, and without chapter leader union representation.

This new group of people are the "new" rubber roomers without representation at the UFT and denied the protection of the Collective Bargaining Agreement, because basically they have been pushed out of their jobs unfairly and under color of law by Mayor Bloomberg and the Chief Executives of the Department of Education who call themselves "Chancellors", "Network Leaders", "Superintendents", etc., consistently without any facts or evidence to support the false claims.

A group of teachers who are, or were, made into ATRs, ATR Polo Colon, and I, Betsy Combier, an advocate for transparency and labor/employment rights, have joined together to expose the denial of due process, civil and human rights by chiefs of the NYC Department of Education (NYC DOE), certain arbitrators at 3020-a, leaders of the United Federation of Teachers (UFT), the "investigators" -agents who work for the Special Commissioner of Investigation (SCI), Office of Special Investigation (OSI), and the Office of Equal Opportunity (OEO) - and the Attorneys who work for the New York United Teachers (NYSUT), and the New York Law Department (Corporation Counsel).

In order to protect the safety of those who join this group to promote an end to the "Rubberization" process described on this blog since 2007, names of those who tell their stories will, for now, remain anonymous if the person so desires, and Polo and I will be the gatekeepers. So if you are an ATR, or know a story involving an ATR or someone re-assigned or about to go into a 3020-a, please use the email address advocatz77@gmail.com and give us your contact information. We will protect your anonymity and hold onto your privacy.

Betsy Combier and Polo Colon, Editors

FAITH When we walk to the edge of all the light we have and take the step into the darkness of the unknown, we must believe that one of two things will happen. There will be something solid for us to stand on or we will be taught to fly.

Patrick Overton

We have forty million reasons for failure but not a single excuse.Rudyard Kipling (1865-1936)

The Re-Assignment Overview by Betsy Combier

The New York City Board of Education decided in 2002 to rid the public school system of staff who interfered with their takeover and control. The criteria for a "good teacher" is now, more often than not, a "silent teacher", a person who never asks questions, is younger than 40, is making a salary below $50,000, does not care about kids and what they learn, or whether or not money (books, supplies, equipment, etc) is missing. When a teacher or staff member of a school dares to do the right thing and speaks out about wrong-doing - this person is often called a "whistleblower" or "flamethrower" - or, simply is not liked for any reason by the Principal/NYC personnel, suddenly he/she is accused of something by somebody ("given a label of "A", "B", "C", and so on) and whisked away to a drab room called a temporary re-assignment center or "rubber room". Members of the offices of the Special Commissioner of Investigation or the Office of Special Investigations then start work on building a case against the person to justify their being thrown in prison, declared "unfit for duty", or, as Mr. Joel Klein has said, characterized as "guilty of sexual activities and corporal punishment" against the children of New York City.The stories of the people I have met who sit every day in the 8 rubber rooms of NYC prove to me that Mr. Klein is very wrong about his assessment, and this blog is created to prove it to you.

Puppy Snooze

US Department of Labor ELAWS

Aeri Pang, Gotcha Squad Attorney

Attorney Pang, red dress, now chief Attorney For New York State Supreme Court Judge Cynthia Kern

New York State Supreme Court Judge Cynthia Kern

NYC EdStats You Can Use

$12.5 billion: Annual New York City Department of Education (DOE) budget (2002)

$21 billion: Annual New York City DOE budget (2009)
1,719: Number officials employed by the DOE central administration in June 2002

2,442: Number of officials employed by the central administration as of November 2008

2: Number of DOE officials earning more than $180,000 per year in 2004.

22: Number of DOE officials earning more than $180,000 per year in 2007.

5: Number of DOE public relations staffers in 2003.

23: Number of DOE public relations staffers in 2008.

944: Number of contracts approved by DOE in 2008, at a total cost of $1.9 billion.

20: Percentage of contracts that exceeded estimated cost by at least 25 percent.

$67.5 million: Annual budget of Project Arts, a decade-old program that was the sole source of dedicated funding for arts education. It was eliminated in 2007.

86: Percentage of principals who said in a 2008 poll that they were unable to provide a quality education because of excessive class sizes in their schools.

100,000: Number of seats DOE plans to provide for charter school students by 2012.

25,000: Number of seats DOE plans to build under 2010 to 2014 capital plan.

66,895: Number of K-3 school-children in classes of 25 or more during the 2008-09 school year.

15,440: Average number of seats per year built during the last six years of the Rudolph Giuliani administration.

10,895: Average number of seats per year built during the first six years of the Bloomberg administration.

27.2: Percentage of newly hired teachers in 2001-02 who were Black.

14.1: Percentage of newly hired teachers in 2006-07 who were Black.

53.3: Percentage of newly hired teachers in 2001-02 who were white.

65.5: Percentage of newly hired teachers in 2006-07 who were white.

76: Percentage of white and Asian students who performed better than the average Black and Latino students in 8th grade English Language Arts (ELA) in 2003.

75: Percentage of white and Asian students who performed better than the average Black and Hispanic students in 8th grade ELA in 2008.

77: Percentage of white and Asian students who performed better than the average Black and Hispanic 8th graders in math in 2003.

81: Percentage of white and Asian students who performed better than the average Black and Hispanic 8th graders in math in 2008.

54: Percentage of New York City public school parents who disapproved of Mayor Bloomberg’s handling of education, according to a March 2009 Quinnipiac poll.

Sources: New York City Council, New York City Comptroller’s Office, New York Daily News, New York Post, Eduwonkette, Quinnipiac Institute, Black Educator, Class Size Matters, New York City Schools Under Bloomberg and Klein.

Betsy Combier and NYSUT lawyer Chris Callagy

The New York City Whistle Award

NYC Whistlers, Winners of the NYC Whistle Award

...are those individuals in New York City who are willing to whistleblow unjust, misleading, or false actions and claims of the politico-educational complex in order to bring about educational reform in favor of children of all races, intellectual ability and economic status. Whistlers ask questions that need to be asked, such as "where is the money?" and "Why does it have to be this way?" and they never give up.

These people have withstood adversity and have held those who seem not to believe in honesty, integrity and compassion accountable for their actions.

Congratulations, and keep up the good work!

Betsy Combier

Special Commissioner of Investigation Richard Condon

Condon "qualified" for his current post after Bloomberg lowered standards; who will leash him?

A great teacher

After being interviewed by the school administration, the prospective teacher said: 'Let me see if I've got this right.

'You want me to go into that room with all those kids, correct their disruptive behavior, observe them for signs of abuse, monitor their dress habits, censor their T-shirt messages, and instill in them a love for learning.

'You want me to check their backpacks for weapons, wage war on drugs and sexually transmitted diseases, and raise their sense of self esteem and personal pride.

'You want me to teach them patriotism and good citizenship, sportsmanship and fair play, and how to register to vote, balance a checkbook, and apply for a job 'You want me to check their heads for lice, recognize signs of antisocial behavior, and make sure that they all pass the final exams.

'You also want me to provide them with an equal education regardless of their handicaps, and communicate regularly with their parents in English, Spanish or any other language, by letter, telephone, newsletter, and report card.

'You want me to do all this with a piece of chalk, a blackboard, a bulletinboard, a few books, a big smile, and a starting salary that qualifies me for food stamps. 'You want me to do all this and then you tell me. . . I CAN'T PRAY?

NYC Police Commissioner Ray Kelly

Joel Klein's famous statement about rubber room teachers and staff

On November 27, 2006, temporarily re-assigned teacher (TRT) Polo Colon asked Joel Klein, the "pretend" Chancellor of the NYC public school system, if he had voted to terminate teachers at the secret Executive Session held just before the public meeting of the Panel For Educational Policy.Mr. Klein answered,"We did not vote to terminate you. We did vote to terminate a teacher in executive Session...in fact, we voted to terminate two teachers. It's perfectly consistent with the law.Many teachers have been charged with sexual activities and some are charged with corporal punishment...I have no interest in removing people who are qualified to teach, I can assure you, because I dont get any return...and in fact, I have complained publicly about how long this process drags out. But our first concern will always be and, as a former lawyer and somebody who clerked on the United States Supreme Court I will tell you, there is no violation of due process whatsoever..."- extracted from the audiotape of the PEP meeting bought by Betsy Combier after filing a FOIL request to the NYC BOE

Rally November 2008 at Tweed

November 26, 2007 Candelight Vigil

Thousands of teachers and school staff members rally at Tweed

A Review of Battling Corruption in America's Public Schools by Betsy Combier

Lydia Segal's book puts the NYC, Chicago, and California Departments of Education on notice....we who have read this book know more about how the system is not there for our kids than "you" want us to know. Lydia Segal's book Battling Corruption in America's Public Schools changes the public school reform movement forever. We can no longer assume that more money allocated to our schools will "fix" the disaster that is our public school system.

Lydia Segal draws on her 10 years of undercover investigation and research in over five urban school districts, including the three largest, New York City, Los Angeles, and Chicago, and the two most decentralized, Houston and Edmonton, Canada, to provide, in her new book Battling Corruption in America's Public Schools, the details of the corruption, theft, fraud, and patronage that has overrun our public school establishment for several decades. There is no question that anyone who is interested in school reform -this means anyone who pays taxes, is a parent or guardian of a child attending school and/or who works toward a goal of establishing an education system that puts children first - must read this book. Ms. Segal's research and information on the education establishment's 'dark' side outrages the reader, and incites us to demand change. Her book therefore, is much more than a book, it is a call to action. We cannot be bystanders any longer to the systemic abuse she so vividly describes, and we will never be able to listen in the same way ever again to school Principals, Superintendents, school custodians or district board members as they request more money "to help the children."

The book's detailed reports on the corruption and crime in our public schools, supported by 52 pages of interview notes, references and specific examples, provide irrefutable evidence that the current failures of our nation's public schools are not due to the lack of money but the impossibility of getting the money to the children who need it and for whom the money is allocated in the first place. Recent statistics show that students of all ages are not learning what they need to know, schools are overcome with violence, teachers are demoralized, and yet billions of dollars are literally shovelled into the system every year. The New York City school system receives more than $16 billion every year; Los Angeles, $7 billion; and Chicago, $3.6 billion. Where does this money go? We have all asked this question as we have walked through school hallways dodging the paint falling off the walls and ceilings, watching our children sitting on broken chairs, using bathrooms without running water or toilet paper, and struggling to achieve their personal best without the services and resources they are supposed to have. Battling Corruption in America's Public Schools is the first book ever to systematically examine school waste and corruption and how to fight it. Ms. Segal, an undercover school investigator turned law professor, documents where the money goes, how waste and fraud embedded in the operation of large school bureaucracies siphon money from classrooms, distort educational priorities, block initiatives, and what we can do to bring badly-needed change. She describes in detail how only a small percentage of the money allocated to students in our public schools actually gets used by them due to corruption and waste, and how city school systems scoring lowest on standardized tests tend to have the biggest criminal records and most payroll padding. Coding problems, the procurement process, compartmentalization and opacity of information leave administrators with only two options: good corruption (which ultimately helps the kids) and bad corruption (which never helps anyone but the perpetrator and his/her allies and accomplices). Indeed, the system fights those who try the good corruption route.

Ms. Segal argues that the problem is not usually bad people, but a bad system that focuses on process at the expense of results. Decades of rules and regulations along with layers of top-down supervision make it so hard to do business with school systems that they encourage the very fraud and waste they were designed to curb. She tells us about how the "godfathers" and "godmothers" (the school board members) obtain jobs for their "pieces" in order to protect the systemic waste and fraud from being dismantled or exposed. Fortunately, she writes, there are good people involved in the corruption as well who must violate the rules in order to get their jobs done. Nonetheless, absurdities abound: school systems following rules to save every penny spend thousands of dollars hunting down checks as small as $25; it takes so long to pay vendors for their work that some have to bribe school officials to move their checks along; caring Principals who want to fix leaky toilets may have to pay workers under the table because submitting a work order through the central office could, and often does, take years. Meanwhile, those who pilfer from classrooms get away with it because the pyramidal structure of large districts makes schools inherently difficult to oversee. What makes Battling Corruption in America's Public Schools a must-read is not only the fascinating - and depressing - details of the systemic wrong-doing but also Ms. Segal's suggestions for reform, based on the proven track records of school systems across North America that have successfully reduced waste and fraud and have pushed more resources into schools.

The pathology of the corruption suggests the remedy, Ms. Segal says, which is decentralization of power into the schools and the hands of the Principals. Distilling what successful school systems have done, Segal advocates new forms of oversight that do not clog up school systems and recommends giving principals more discretion over their school budgets as well as holding them accountable for job performance. She argues for "autonomy in exchange for performance accountability" as part of a bold, far-reaching plan for reclaiming our schools. Her conclusion is logical and convincing. Everyone who reads this book will find his or her perception of public school education changed forever. We cannot accept any longer that a generation of children has been abused by a system that is so full of greed and corruption without screaming "stop!" and "Your game is up!"

Segal reveals how systemic waste and fraud siphon millions of dollars from urban classrooms and shows how money is lost in systems that focus on process rather than on results, as well as how regulations established to curb waste and fraud provide perverse incentives for new forms of both. Anyone who is interested in school reform--this means anyone who pays taxes, is a parent or guardian of a child attending school, and/or who works toward a goal of establishing an education system that puts children first--must read this book. --

Lydia G. Segal is Associate Professor of Criminal Law and Public Administration at John Jay College of Criminal Justice, City University of New York.